Divorce & separation
Everyone who marries does so with the intention that it will last forever. However, life has its twists and turns and things change over time.
In the past, married people who wished to separate had to prove that they qualified for a divorce. The most common criteria were adultery, cruelty, or desertion without cause for at least two years. Applicants had to prove that their estranged spouse had committed a matrimonial offence while they themselves had not (or if they had, it should be overlooked). Failing to prove their case meant having to stay in their unhappy marriage.
Australia is a no-fault jurisdiction. It does not matter anymore who did or did not do something during an unhappy marriage. All that is needed is to demonstrate that there is an irretrievable breakdown of the marriage through a separation of at least 12 months with no prospect of reconciliation. All time and energy are instead spent on looking towards moving towards the future. Agreements are negotiated and made about the fair division of property. Adequate care arrangements are put in place to make sure children are protected from harm and enjoy meaningful relationships with their parents. As a result, it is common for many people to refer to property division and parenting disputes as a “divorce”. However, divorce only actually means the official ending of a marriage. Putting it that way makes divorce seem quite straightforward, but there are several aspects and issues to consider.
An Australian marriage is defined as being union of 2 people to the exclusion of all others, voluntarily entered into for life. The word people means adults at the time of the wedding. The word people also now includes couples in same sex relationships.
In rare circumstances, it is possible to have a marriage annulled if it does not meet the essential criteria.
If you have been married for less than 2 years, you must attempt marriage counselling before being able to file an Application for Divorce.
Before you can divorce, you must prove that a marriage exists. This is usually done by simply presenting a Marriage Certificate. But sometimes the Marriage Certificate is in a foreign language, records incorrect information, or does not exist at all.
Before you can divorce, you must prove that you have been separated for at least 12 months. This can sometimes be difficult if you have lived under the same roof while separated. You will need to present extra evidence from yourself and a third party with your Application for Divorce.
If your estranged spouse has filed and served an Application for Divorce, you may not agree with the information in their documents. In those circumstances, you have the option of filing a response. You cannot stop the divorce, but you can dispute the facts upon which the Divorce Order is being made.
After you have divorced, you should make a fresh Will to protect your intentions and the intended beneficiaries of your estate.
Before you remarry, you must obtain a divorce order or you will commit the criminal offence of bigamy.
There is no appeal from a divorce order. As a result, you must prove personal service of an Application for Divorce before a divorce order is granted. Sometimes it is not possible to personally serve an Application for Divorce on your estranged spouse. You may no longer have their contact details or they are trying to evade process servers.
There is a period of one month and one day between the divorce being granted and the divorce order being made. This period is called decree nisi. Its traditional purpose was to give an opportunity to anyone who may be adversely affected by the divorce from being made final. However, its modern purpose is to give divorcing couples a chance to cancel the divorce before it is made final.
Finally, you only have up until 12 months from the date of your divorce order to file an application about the division of your matrimonial property.